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Aug. 2 — A collective action brought by current and former assistant park rangers challenging
New York City's refusal to pay them for time spent putting on and taking off their
uniforms and equipment was revived Aug. 2 by the U.S. Court of Appeals for the Second
Circuit (
Perez v. New York
, 2d Cir., No. 15099315, 8/2/16
).

A lower court, in dismissing the group's claims under the Fair Labor Standards Act,
found that “donning and doffing” uniforms doesn't qualify as compensable activity
because it isn't “integral and indispensable” to their principal duties.

The “integral and indispensable”
standard is “markedly `fact-dependent,' ” Judge Robert Sack wrote for the Second Circuit.
The lower court classified the rangers uniforms, including their equipment, as purely
protective gear. It also characterized the protective elements of the uniform, like
a baton and mace, as generic safety gear.

“Both lower courts, and other circuits, had been reading
Gorman to establish a per se rule that generic protective gear, as distinguished from specialized
protective gear, could never be integral and indispensable,”
one of the rangers' attorneys, James Reif of Gladstein, Reif &
Meginniss LLP, told Bloomberg BNA Aug. 2. The lower court in this case granted summary
judgment to the city on that basis, without considering the parties' other arguments,
he said.

In this ruling, the Second Circuit judges “said they hadn't intended that in
Gorman, which is in accordance with the majority of other courts,” Reif said.

Facts Reconsidered

Among the first considerations in these cases is the degree to which the pre- or post-shift
activity is done for the employer's benefit, the Second Circuit said.

Courts should also consider whether the employee has a choice in the matter, whether
the activity takes place at home or in the workplace and whether the activity is done
to prepare items used to perform principal activities.

In this instance, the rangers don't have a choice as to whether to wear uniforms and
are required to do so at the workplace, Sack wrote. “More fundamentally,” the uniforms
are “a visible signal of authority,” and their utility belts hold items used to perform
law enforcement tasks, he said.

The court said it couldn't conclude, based on those considerations, that the donning
and doffing of rangers' uniforms aren't integral and indispensable to their duties.

Gorman Clarified

Gorman “did not endorse” a “categorical rule” that generic protective gear is never integral
and indispensable to an employee's principal activities, Sack wrote.

Rather, the case held that the donning and doffing of generic safety gear, such as
helmets and goggles, isn't integral and indispensable “because the items at issue
guarded against only routine workplace risks,” he said. “The generic nature of the
items may have pointed toward that” conclusion, but their generic nature “did not
establish, as a matter of law, that they guarded against only routine risks,”
Sack said.

The proper inquiry under
Gorman is to “determine whether the gear—however generic or specialized—guards against `workplace
dangers' that accompany the employee's principal activities and `transcend ordinary
risks,' ” according to the appeals court. That inquiry requires a “fact-intensive
examination of the gear” and its relationship to the employee's principal activities,
it said.

The court noted that the “risk of sustaining gunfire while enforcing municipal laws
is not, in our view, an ordinary risk of employment.” Thus, under
Gorman, the rangers donning and doffing a bulletproof vest—considered separately from the
rest of their uniform—“may qualify as integral and indispensable,” it said.

The court sent the case back for a consideration of the parties' remaining arguments.

Other Law Enforcement Differs

“The result here is that the court has provided greater clarity for both plaintiffs
and defendants, which I think will be helpful going forward,” Reif said.

Nothing in the rangers' collective bargaining agreement “addresses the question of
compensation for time spent donning and doffing,” Reif said.

The holding may not apply directly to other types of law enforcement officers, such
as police, he said. “In our case the plaintiffs are, as a practical matter, required
to put the uniform on at the job, and take it off at the job, whereas I think most
police officers do so at home,” Reif said. “So this doesn't necessarily apply to police
or correctional officers the same way it applies to park rangers.”

The city law department represented New York.

To contact the reporter on this story: Hassan A. Kanu in Washington at
hkanu@bna.com

To contact the editor responsible for this story:
Susan J. McGolrick at
smcgolrick@bna.com

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